Levesque v. Doocy, Civil No. 07-112-P-H.
| Decision Date | 03 June 2008 |
| Docket Number | Civil No. 07-112-P-H. |
| Citation | 557 F.Supp.2d 157 |
| Parties | Leon LEVESQUE, Plaintiff v. Steve DOOCY, et al., Defendants. |
| Court | U.S. District Court — District of Maine |
Bernard J. Kubetz, Eaton Peabody, Bangor, ME, for Plaintiff.
Carlotta Cassidy, Dori Ann Hanswirth, Theresa M. House, Hogan & Hartson LLP, New York, NY, John M.R. Paterson, David Soley, Bernstein, Shur, Portland, ME, for Defendants.
James E. Belleau, Skelton, Taintor & Abbott, Auburn, ME, for Interested Parties.
DECISION AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
The facts in this case — a morning cable news show derisively reporting events and statements obtained unwittingly from an online parody — should provide grist for journalism classes teaching research and professionalism standards in the Internet age. But First Amendment principles developed long before the Internet still provide protection to the gullible news program hosts against this public official's claims for defamation and false light invasion of privacy. Poetic justice would subject the defendants to the same ridicule that they accorded the plaintiff. But in real life, the aggrieved school superintendent must be satisfied with their later retraction and a professional reputation sullied less than theirs. The defendants' motion for summary judgment is GRANTED.
The dispute between the parties arises from the Fox News Channel's coverage of an incident that occurred at the Lewiston Middle School in Lewiston, Maine. On April 11, 2007, a middle school student placed a bag containing ham on a table where Somali students were eating lunch.2 The student reportedly was acting on a dare; he and his friends thought it would be a funny joke.3 The Somali students, who were Muslims, were very upset by the incident.4 They informed the lunchroom monitor, and the lunchroom monitor alerted William Brochu, the school resource officer from the Lewiston Police Department.5 Officer Brochu directed all the students involved in the incident to report to the assistant principal's office.6 There, the assistant principal and the principal met with the students and ultimately suspended the culprit for ten school days.7
Later that day, following directions from a superior officer, Officer Brochu filed a police report describing the cafeteria incident.8 The Police Department then referred the report to the Office of the Maine Attorney General for further investigation.9 The police report classified the incident as "Crime: Harassment/Hate Bias."10
The plaintiff, Leon Levesque, is the superintendent of the Lewiston School Department.11 On the day that the incident occurred, the middle school principal informed Levesque that the student had been suspended.12 A week later, Bonnie Washuk, a reporter for the local newspaper, the Lewiston Sun Journal, contacted Levesque in connection with an article that she intended to write about the incident.13
The article ran in the Lewiston Sun Journal on April 19, 2007, and included quotations from Levesque regarding the incident.14 For example, the Washuk article reported that Levesque said that the incident was being treated seriously as "a hate incident" and that "[w]e've got some work to do to turn this around and bring the school community back together again[.]" Washuk cited Levesque as saying that the incident did not reflect the moral values of the school staff and students and that 15 The article also quoted Stephen Wessler, the executive Director of the Center for the Prevention of Hate Violence, who was working with the middle school to develop an appropriate response to the April 11 incident.16
On April 23, 2007, an article by Nicholas Plagman appeared on a website called Associated Content.17 The article, apparently a parody,18 purported to describe the April 11 incident with quotations from Levesque and Wessler, but some of the facts and quotations were fabricated.19 For example, the Plagman article reported that the ham was a "ham sandwich" and falsely quoted Levesque as saying "[t]hese children have got to learn that ham is not a toy, and that there are consequences for being nonchalant about where you put your sandwich." The article also falsely quoted Levesque as saying that "[a]ll our students should feel welcome in our schools, knowing that they are safe from attacks with ham, bacon, porkchops, or any other delicious meat that comes from pigs." The article attributed several fabricated quotations to Wessler, including: 20 The Plagman article falsely listed the Associated Press as a source.21
Fox & Friends is a daily morning show on the Fox News Channel, which is owned and operated by the defendant, Fox News Network, LLC.22 The hosts, two of whom are the individual defendants Steve Doocy and Brian Kilmeade, report and discuss news and current events, interview guests, and report the weather from 6 am until 9 am.23 Early in the morning of April 24 (about 3:30 am), a Fox & Friends producer searching the Internet for news reports discovered a link to the Plagman article.24 The producer sent the Plagman piece to the Fox News Research Department for further research.25 There, another Fox employee researched the incident described in the Plagman piece. He confirmed some of the facts presented in the article. For example, he confirmed that the Lewiston Middle School, the Lewiston School Department, and the Center for the Prevention of Hate Violence all existed. He also confirmed that Levesque was the superintendent of the Lewiston School Department and that Wessler was the executive director of the Center for the Prevention of Hate Violence. He discovered the Washuk article on the incident (and confirmed that the Lewiston Sun Journal was a legitimate newspaper) and two other articles relating to a prior incident in Lewiston in which a man rolled a pig's head into a local mosque.26
The Fox research employee sent the Washuk article and the two mosque incident articles to the producer who delivered them to Fox & Friends's senior producer.27 They were then packaged with other news articles describing unrelated reports, to be considered for inclusion in the morning's cablecast of Fox & Friends.28 By 4:15 am, approximately forty-five minutes after the producer's initial discovery of the Plagman parody, the materials had been delivered to the show's executive producer.29 They were also provided to the show's hosts, including the defendants Steve Doocy and Brian Kilmeade.30
After receiving the materials, Doocy conducted additional research through the search engine Google News.31 Doocy's Google News search revealed the Washuk article and the Plagman piece (both of which he already possessed) and a brief April 19, 2007, item published on the Boston Globe's website, www.boston.com.32 The Globe article corroborated the general story recounted in the Washuk and Plagman pieces: it reported that a middle school student was suspended after he placed a ham steak in a bag on a lunch table where Somali students were sitting and that Superintendent Levesque said that the incident was being treated seriously and investigated by the police. The Globe article also confirmed that the Center for the Prevention of Hate Violence was working with the school on a response plan.33 The article was sourced to the Associated Press.34 Doocy told the executive producer about the Globe article.35 Around 4:30 am, approximately one hour after uncovering the first reference to the April 11 incident (the Plagman parody), the defendants decided that they would include the story in that morning's show.36
At some point before the cablecast began at 6:00 am, the executive producer instructed a production assistant to contact Levesque and Wessler to arrange on-air interviews for that morning's show.37 The record indicates that the production assistant left two messages for Levesque sometime after 8:00 am on April 24, 2007.38 By that time, the show had been airing for over two hours.39 Levesque's assistant gave him the messages when he arrived at the office at 8:30 am.40 Levesque did not return the defendants' calls.41
During the course of the three-hour Fox & Friends cablecast, the defendants repeatedly raised and discussed the April 11 incident, relentlessly ridiculing Levesque and his handling of the episode. They reported as true some of the quotations that Plagman falsely attributed to Levesque. They also attributed to Levesque certain fabricated statements that the Plagman article had attributed to Wessler.42 The defendants also used the incident as the basis for their "question of the day," where the hosts ask viewers to call or email the show to share their thoughts.43 The question they posed was: "Ham sandwich, hate crime or just lunch?" The defendants aired at least two phone calls with viewers who discussed the April 11 incident, and referred to several emails that they received on the subject during the cablecast.44
Sometime after the April 24, 2007, Fox & Friends cablecast, Levesque's lawyer contacted Fox News Channel to complain about inaccuracies in the cablecast.45 On May 16, 2007, Fox & Friends issued a retraction and apology, admitting that "various quotes [in the Plagman parody] were cited to Superintendent Leon Levesque that turned out to be fictitious" and that had Fox & Friends "known the source was not legit [it] never would have mentioned them." 46
Levesque filed this lawsuit a few months later, asserting both defamation and false light invasion of privacy claims.47 The defendants have filed a motion for summary judgment.
To continue reading
Request your trial
-
Levesque v. Doocy
...acted with actual malice in making them. The district court held that the statements were protected on multiple grounds. Levesque v. Doocy, 557 F.Supp.2d 157 (D.Me.2008). It found the reference to a "hate crime" substantially true and the "anti-ham response plan" quip protected rhetorical h......
-
Lacey v. Me. Media Collective, LLC
...(New York law); Stark v. Zeta Phi Beta Sorority, Inc., 587 F. Supp. 2d 170, 174 (D.D.C. 2008) (summary judgment); Levesque v. Doocy, 557 F. Supp. 2d 157, 159 (D. Me. 2008) (summary judgment); Norris v. Bangor Publ'g. Co., 53 F. Supp. 2d 495, 498 (D. Me. 1999) (summary judgment); Novecon, Lt......
-
Leahy-Lind v. Me. Dep't of Health & Human Servs.
.... . the Constitution protects as 'opinions' statements that do not 'contain a provably false factual connotation.'" Levesque v. Doocy, 557 F. Supp. 2d 157, 164 (D. Me. 2008) aff'd, 560 F.3d 82 (1st Cir. 2009) (citing Milkovich v. Lorain Journal Co., 497 U.S. 1, 19-20 (1990).) However, "[a] ......